Integrated Securities No 3 Pty Ltd v Oceans 5 Ultimate Getaways Pty Ltd [2021] NSWSC 278

Integrated Securities No 3 Pty Ltd v Oceans 5 Ultimate Getaways Pty Ltd [2021] NSWSC 278

The plaintiff, as equitable mortgagee, is entitled to summary judgment for possession and judicial sale of the property notwithstanding the mortgagor's bankruptcy because s 58(5) of the Bankruptcy Act 1966 preserves the secured creditor's rights, and the unregistered mortgage is enforceable in equity against the bankrupt's trustee.

Parties
Plaintiff: Integrated Securities No 3 Pty Ltd; First Defendant: Oceans 5 Ultimate Getaways Pty Ltd; Second Defendant: Walid Chami
Jurisdiction
Australia
Judgment Date
24 March 2021
Procedural Posture
Summary Judgment Application / Decision and Orders
Outcome
Summary judgment for the Plaintiff against the Second Defendant.
Legal Topics
Unregistered Mortgage, Possession of Land, Summary Judgment, Bankruptcy and Secured Creditors
Land Law Bankruptcy Civil Procedure Unregistered Mortgage Possession of Land Summary Judgment Bankruptcy and Secured Creditors

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Parties

Integrated Securities No 3 Pty Ltd

Plaintiff

Oceans 5 Ultimate Getaways Pty Ltd

First Defendant

Walid Chami

Second Defendant

Procedural Posture

Summary Judgment Application / Decision and Orders

Legal Issues

  1. 1 Whether summary judgment should be entered for possession and judicial sale under an unregistered second mortgage after mortgagor's bankruptcy
  2. 2 Whether s 58 Bankruptcy Act 1966 (Cth) precludes order for possession to secured creditor

Ratio Decidendi

The plaintiff, as equitable mortgagee, is entitled to summary judgment for possession and judicial sale of the property notwithstanding the mortgagor's bankruptcy because s 58(5) of the Bankruptcy Act 1966 preserves the secured creditor's rights, and the unregistered mortgage is enforceable in equity against the bankrupt's trustee.

Court Disposition

Summary judgment for the Plaintiff against the Second Defendant.

Orders

  • Declaration that the Second Defendant has in equity mortgaged 205 Rochford Street, Erskineville and charged the property with repayment of all monies owing to the Plaintiff under the agreement dated around 9 August 2018.
  • Specific performance by Second Defendant of the agreement with Plaintiff and other guarantors.